The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-02-24
Our own court has decisively affirmed this ele-

Our own court has decisively affirmed this ele-
mentary doctrine. tSmith Va Myers.
The only course which a court rightfully
pursue is to decline to speak in all cases where
it cannot speak by the law. 1t is not a matter
OF choice; it is a matter of duty. The duty is as
solemn and imperative as any one among all the
grave duties that rest upon the courts of the
country. Nor ought the courts to give opinions
which are in form fragments but in reality mere
phantomatic resembances, since in ways
than one such a course is productive of evil.
To the judicial department, the most con-
sentative of all the coordinate branches of the
government is intrusted the high duty of de-
claring and enforcing the law as it exists, and
upon the officers of that department rests more
strongly than upon the officers OF the other de-
partments the solemn obligation to unwavering-
ly abide by the established principles of law. A
great and important part of the duty OF the
courts is to compel citizens and officers to obey
the rules of law. and they cannot, upon any i'm
agnable grounds, be themselves excused for
violating those principles. 1t is the plain and
solemn duty of the courts TO apply to themselves
the rules which they apply against others.
Courts, most of oil other instruments of the law,
should sternly refuse to transgress it's rules. 1t
is an established principle Of law. long settled
and firmly main tanned, that courts will not de-
eide any question affecting the merits of case
over which it has no jurisdiction. and court
can. without plain and inexcusabe breach of
duty, violate that principle. No one thing in ali
jurisprudence can be of higher Importance than
law as it comes from the hands of the law-mak-
erS
The question upon the facts stated in the ap-
pellant's plea is whether there any iurisdic
tion in the Circuit Court over the person Of the
appellant, not whether there was defect in its
process or an irregularity in the service of its
writs. There is no muddle; there is either juris-
diction no jurisdiction. IL upon the facts
stated in the plea the law is that the appellant
may be sued in Marion county, then there is
plenary jurisdiction. If the law is that he can
not be there sued, then there is an absolute want
of power to proceed q single step against him. 1t
is either power or 20 power. The court cannot
look beyond or outside of the record. and on the
record the question is Was there any jursdic-
ton at allf
1t is enough for the decision Of this case to af-
firm that there was no jurisdiction of the person
of the appellant II is not necessary, nor, in
deed proper, to decide any other questions than
those of juris 2iction. The want of jurisdiction
Of the person is fatal to the right go further
into the case. 1t is an elementary rule that,
without jurisdiction, there is no validity or vi
tality in any judgment, for, to give the slight
est vitality to a judgment, there must be ju-
risdiction of the cause and of the person" Her
man on Estoppel, "a. AS there was no juris-
Giction of the person, this must not in any
event. go back to the court from which it came
for trial; it goes back there only to be cast out
Jurisdiction of the person Of the appellant
could only have been acquired in action
brought in the county of Allen where he resided,
does not fall within the provisions of any other
section. That section reads thus: ''In all
other cases the action shall be com u,euced in
the county where the defendants. or some one of
them, has his usual place of residence This
language is broad and comprehensive in its
scope, and mandatory IL it's effect. 1t is the
mand of the Law that all actions, except those
otherwise provided for. shall be brought in the
county where the defendant resides. 1t is not
within the power of the court to create an ex
| ception. To do that would be judicial leeisla.
ton, and judicial legislation is always odious,
for legislation by the courts is usurpation.
There is no escape from the command of the
statute. and it is the duty of the courts to en-
force it; they have no discretion to change it.
nor have they power to take case out of its
| operation. They must apply the law it il
written in Section 3l2 to all cases for which 9
| different provision has not been made by the
| Legislature. II the law is faulty. the Legisla
| ture, and not the courts, must amend it. for the
| courts have no authority to change line or q
| wQed since there is neither ambiguity nor OBJ
| security. Section l132 does not impair the force
| or effect of the section under immediate men
ton. The provision of Section 1892 is tha
an information may be filed by the
prosecuting attorney of the Circuit Cour
in the proper county. and the '.proper county
can only be ascertained by exploring the statutes
| It is to the law, and to the law alone that WI
| can look to ascertain what is the ''propel
county" and the law informs us that the 'prope
| county is the county of the defendants usua
| residence. The proper county" can only be tn,
| county where the law authorizes actions to b.
| instituted, for, no other county can, with &C
| curacy or proprietv, be said to be the sprope
| county, Our courts have uniformly held tina
ali actions, except those for which express pro
| vision is made. must be brought in the count.
where the defendant resides. torcible exampl
| is supplied by the case of the State vs.. White
| water ETC.. Co.. Ind. 800, which was action
| to compel, by mandate, the rebuilding of bridg
in Dearborn county. The court held that tn
action must be BROUGHT in Fayette county, wher
the defendant resided, saying, among othe
things: But it 10 assumed that the present az
ton is local in it's nature and must be brought i
the county where the duty sought to be enforce
il to be performed The Code points on
and defines the subject matter of all action
which must be instituted in the county in whic
the subject of the action or some part thereo
is situated; but the case at bar does not seem
be within this definition" Hanley vs. State t6
Ind, 98l strongly enforces the same general do<
trine. That was a prosecution for bastardy. an
it was held that 1t must be instituted In til
county where the defendant resided, the coul
saying: such proceedings. being transitory
their character, must, under the Code, be con
menced in the county in which the defendai
. resides when he is . resident of the State
other cases this court has asserted the policy
the statute to be. what indeed, its languae
plainly imports, to require all actions, not O.
pressly otherwise provided for. to be brought
, the county where the defendant resides (Hot
son vs.. Warner. 60 Ind, 2l4; Brown vs.. Ray,
Ind. Isl; Robbins Alley, SO Ind, 5S3; Ewin
vs. Ewing, "a Ind. 468; Michael VS.. Thomas.
Ind. ~; McCauIy vs. Murdoch, 81 ind, %
State va. Beard. 40 Ind, 457; Coleman VS.. Lyo
9 AZ Ind. 289 It must, therefore be deemed Il
settled law Of this State that all actions must
: brought in the county where the defendant +
9 sides, except such as the statute expressly pr
. vides shall be brought elsewhere.
9 It is assumed that this is not directly a eli,
!, action, but is special proceeding, and is n
governed by Section 3l2 of the Code, but it h
/ been expressly ruled that such a proceeding
J. this is civil action. In Reynolds vs.. State,
Q Ind, 1872, the question came directly before {
Q court. and in deciding it the court said: ut
u clear, we think from this section of the Cod
e that information in the nature of quo We
IL ranto in this State is civil action"
l. If, however, it were conceded that the Dol